State ex rel. Comm. on Unauth. Prac. of Law v. Yah
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Nebraska Advance Sheets
state ex rel. comm. on unauth. prac. of law v. yah
Cite as 281 Neb. 383
383
State of Nebraska ex rel. Commission on Unauthorized
Practice of Law, relator, v. M.A. Yah, doing
business as Parental R ights, respondent.
___ N.W.2d ___
Filed April 22, 2011. No. S-10-882.
1. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court
has the inherent power to define and regulate the practice of law and is vested
with exclusive power to determine the qualifications of persons who may be permitted to practice law.
2. ____: ____. The inherent power of the Nebraska Supreme Court to define and
regulate the practice of law includes the power to prevent persons who are not
attorneys admitted to practice in this state from engaging in the practice of law.
3. Attorney and Client: Actions. A legal proceeding in which a party is represented by a person not admitted to practice law is considered a nullity and is
subject to dismissal.
4. Rules of the Supreme Court: Attorneys at Law. Pursuant to its inherent authority to define and regulate the practice of law in Nebraska, the Nebraska Supreme
Court has adopted rules specifically addressed to the unauthorized practice
of law.
Original action. Injunction issued.
Sean J. Brennan, Special Prosecutor, for relator.
M.A. Yah, pro se.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
P er Curiam.
This is an original action to enjoin the unauthorized practice
of law. We conclude that the injunction should issue.
BACKGROUND
On May 24, 2010, the Nebraska Supreme Court’s Commission
on Unauthorized Practice of Law (Commission) filed a petition for injunctive relief against M.A. Yah, doing business as
Parental Rights (Respondent). The Commission alleged that it
had received complaints that Respondent was engaging in the
unauthorized practice of law within the State of Nebraska and
that it had investigated such complaints and found them to have
merit. Specifically, the Commission alleged that from June 1,
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2009, until the date of the filing of the petition, Respondent
had engaged in the unauthorized practice of law in that
(A) the Respondent is giving advice or counsel to
another entity or person as to the legal rights of that entity
or person or the legal rights of others for compensation,
direct or indirect, where a relationship of trust or reliance
exists between the party giving such advice or counsel
and the party to which it is given;
(B) the Respondent has been selecting, drafting, or
completing, for another entity or person, legal documents
which affect the legal rights of the entity or person.
The Commission further alleged that pursuant to Neb. Ct. R.
§ 3-1014(F) (rev. 2008), it sent Respondent written notice of
its findings and offered Respondent an opportunity to enter
into a written consent agreement to refrain from engaging in
the unauthorized practice of law, but he declined to enter into a
consent agreement and continued to engage in the unauthorized
practice of law. Based upon the allegations of the petition,
the Commission requested this court to invoke the procedures
set forth at Neb. Ct. R. § 3-1015(C) through (F) and enjoin
Respondent “from engaging in the unauthorized practice of law
in the State of Nebraska under threat of punishment pursuant
to the contempt powers of this Court and assess costs of the
proceedings against the Respondent.”
Respondent was served with a copy of the petition and
summons on June 9, 2010. He filed an answer admitting that
he is a resident of Nebraska and conducts business in this
State, but denying the material allegations of the petition.
On the Commission’s motion, this court appointed a hearing master pursuant to § 3-1015(F). On November 9, the
hearing master conducted an evidentiary hearing at which
Respondent appeared telephonically at Respondent’s request.
Following the hearing, the hearing master filed a report which
included the following findings of fact (citations to the record
are omitted):
1. Respondent is a resident of the State of Nebraska
and conducts business in Douglas County, Nebraska.
2. Respondent is not licensed to practice law in the
State of Nebraska.
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state ex rel. comm. on unauth. prac. of law v. yah
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3. At all pertinent times, up until October of 2010, the
Respondent conducted business as Parental Rights at 1941
South 42nd Street, Suite 410 in Omaha, Douglas County,
Nebraska. In . . . a complaint filed in a case styled M.A.
Yah, Parental Rights, Plaintiff, v. Jane Burk [sic], et al.,
filed in the District Court of Douglas County, Nebraska,
and found at Docket 1105 No. 408, Respondent himself
alleges that he does business as Parental Rights and holds
himself out as specializing in services related to domestic
relations cases.
4. On or about August 28, 2009, the Respondent entered
into a written agreement denominated as an “Agent/Client
Agreement” with Glen Krueger under which Respondent
agreed, for the sum of $1,425.00 to prepare a “Complaint
for Custody” and to file the same in the District Court of
Douglas County.
5. Pursuant to the “Agent/Client Agreement,” the
Respondent prepared what was entitled a “Complaint
for Custody” and filed the same in the District Court
of Douglas County, Nebraska in a case styled Glen
Krueger v. Ashley McDermott and filed at Docket 1099
No. 165. On page three of the “Complaint for Custody”
it indicates that the pleading was prepared by Parental
Rights, P.O. Box 390945, Omaha, Nebraska 68139. The
post office box is the same post office box listed on the
business card of [Respondent], Regional Manager for
Parental Rights.
6. In September of 2009, Mr. Krueger contacted
Catherine Mahern, a professor of law at Creighton
University and Director of the clinical program, who
was volunteering at the self-help desk in the Douglas
County Courthouse. Mr. Krueger stated to Ms. Mahern
that [Respondent] had prepared the “Complaint for
Custody” described above and provided him with legal
advice on issues and process regarding the case. Mr.
Krueger told Ms. Mahern that, pursuant to the “Agent/
Client Agreement”, he had made at least one payment in
addition to the initial payment made at the time of execution of the agreement. Mr. Krueger confirmed the identity
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of [Respondent] to Ms. Mahern through a review of mug
shots that had been provided by the Sheriff’s Department
to the Douglas County District Court Clerk.
7. Respondent also drafted pleadings in a case styled
Danner v. Barnes, in the District Court of Douglas County,
Nebraska, at Docket 1101 No. 388. A “Complaint for
Visitation” filed on or about November 4, 2009, in that
case shows at the bottom thereof that it was prepared by
Parental Rights, P.O. Box 390945, Omaha, NE 68139.
Thereafter, in the same case, an “Amemded [sic] Motion
for Temporary Allowance With Notice of Hearing” was
likewise filed on or about the 8th day of December, 2009,
with a notation that it was prepared by Parental Rights,
P.O. Box 390945, Omaha, NE 68139.
8. Respondent also prepared pleadings in a case styled
State of Nebraska on behalf of itself and minor child
Quartez A. Joplin, Plaintiff, v. Timothy M. Thompson, Jr.,
Defendant, filed in the District Court of Lancaster County,
Nebraska, as Case No. CI 05-1365. In the court file, there
is a pleading entitled “Application to Modify” filed on
behalf of Defendant Timothy M. Thompson, Jr., dated the
21st day of December, 2009, which contains a notation
at the end to the effect that it was prepared by Parental
Rights, P.O. Box 390945, Omaha, NE 68139. Thompson
appeared in Court on the motion, which had not been
set for a hearing, and provided to District Court Judge
Karen Flowers a business card of the individual who had
prepared the pleadings on his behalf. The business card
is that of [Respondent], Regional Manager for Parental
Rights, with the same post office box 390945 as appears
at the foot of the filed “Application to Modify.”
9. On at least two occasions, Respondent was identified as the individual filing pleadings on behalf of
third parties. In the case of State of Nebraska, et al., v.
Lamensia Epperson, filed in the Douglas County District
Court as Case No. 1009-084, personnel at the Douglas
County District Court Clerk’s office, who were familiar
with Respondent, confirmed that he personally filed a
pleading to modify an earlier decree and award Epperson
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custody of her children. Similarly, in a case styled Butler
v. Butler, filed in the Douglas County District Court
as Case No. 1091-049, personnel from the office of
the Douglas County District Court Clerk confirmed that
Respondent had filed an application to modify on behalf
of Mr. Breyland Butler. Ms. Mahern confirmed, through
conversations with Mr. Butler, that Mr. Butler learned
of Respondent through an advertisement in the Thrifty
Nickel, contacted Respondent, and entered into an agreement for at least $1,400.00 for which Respondent would
prepare and file pleadings on his behalf in the case. Mr.
Butler confirmed that Respondent prepared the pleadings
and filed the same.
10. On at least two occasions, Respondent has filed
actions in the Douglas County Court, Civil/Small Claims
Division, seeking payment for the provision of legal serv
ices. In a case styled M.A. Yah v. Howard W. Dial, Jr.,
filed as Case No. SC-09-1367 in the Douglas County
Court, Civil/Small Claims Division, on December 2, 2009,
Respondent alleged that “the Defendant promised to pay
[Respondent] the sum of $1,625.00 to file a Complaint
for Custody; . . .” Similarly, in a case styled M.A. Yah
v. Rosetta L. Bush, filed as Case No. SC 09-1368 on
December 14, 2009, in the Douglas County Court, Civil/
Small Claims Division, Respondent alleged that “Rosetta
Bush signed a contract hiring [Respondent] to prepare and
file a joint custody complaint, for the sum of $1,425.00.
After the complaint was filed, the Defendant made a couple of payments, then quit paying [Respondent], breaking
the written contract.”
11. The issue of Respondent possibly engaging in the
unauthorized practice of law was brought to the attention
of the [Commission] in September of 2009. On or about
December 8, 2009, counsel for the [Commission] wrote
to Respondent providing him a summary of the information received and requesting information on his organization so that the [Commission] could make a determination as to whether or not Respondent fell within any of
the exceptions contained in the Rules on Unauthorized
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Practice of Law. By letter dated January 14, 2010, the
Respondent replied, setting forth his position and contending, with arguments worthy of a true pettifogger,
that his actions did not constitute the practice of law.
Thereafter, on February 1, 2010, pursuant to direction of
the [Commission], [the Commission’s] counsel advised
Respondent that [the Commission] found Respondent’s
actions to be in violation of the Supreme Court’s Rules
on the Unauthorized Practice of Law. That same letter
requested Respondent to voluntarily cease his activities.
Subsequent to transmittal of this letter to Respondent,
[the Commission’s] counsel received a phone call from
Respondent who advised [the Commission’s] counsel
that “I ain’t ceasing and desisting.”
12. As recently as September 8 of 2010, Respondent
prepared pleadings on behalf of a third party. In the
case of State v. Quincey Mothershed, filed in the District
Court of Douglas County, Nebraska, at Docket 1068
No. 166, the Respondent, pursuant to a written agreement
with Mr. Mothershed, prepared documents to provide Mr.
Mothershed with custody or access to his children.
Based upon these findings, the hearing master concluded
“beyond any reasonable doubt that Respondent, who is not
licensed to practice law in the state of Nebraska, has provided legal advice, drafted pleadings on behalf of others to
be filed in court, and filed pleadings in courts of the state
of Nebraska on behalf of third parties.” The hearing master
rejected Respondent’s contention that he merely furnished legal
forms, noting that the pleadings which Respondent prepared
“were drafted for the particular circumstances of the case” and
that “implicit in the drafting of these documents is the advice
provided as to what pleading to use, what it should contain,
where to file it and, in some instances, actual filing by the
Respondent himself.” The hearing master further concluded
that Respondent engaged in such activities for compensation,
noting that on at least two occasions, he sued his “‘clients’” for
failing to pay him for his preparation of pleadings.
The hearing master rejected Respondent’s contention that
his conduct was not specifically proscribed by the criminal
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state ex rel. comm. on unauth. prac. of law v. yah
Cite as 281 Neb. 383
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statutes pertaining to the unauthorized practice of law, noting
authority from this state and elsewhere that courts have inherent power to investigate and restrain the unauthorized practice
of law notwithstanding the existence of statutes which make
such conduct a criminal offense. The hearing master concluded
that Respondent had engaged in the unauthorized practice of
law in violation of the rules promulgated by this court and
recommended entry of a civil injunction pursuant to the rules
of this court.
By order of this court and pursuant to Neb. Ct. R. § 3-1017,
a copy of the hearing master’s report was mailed to the parties
and deadlines for the filing of exceptions to the report and briefs
were established. These materials were mailed to Respondent
at two separate addresses on file with the clerk’s office. Both
mailings were returned by the U.S. Postal Service marked as
undeliverable and unable to forward. Respondent did not file
exceptions to the report as permitted by § 3-1017(B).
On January 12, 2011, this court established a briefing
schedule which was mailed to the parties. The mailings to
Respondent at both of his known addresses were returned by
the U.S. Postal Service marked as undeliverable and unable to
forward. The Commission filed a motion requesting issuance
of the injunction summarily on the basis of the existing record.
Respondent did not respond to the motion, so on February 24,
this court entered an order to show cause, requiring Respondent
to show cause within 20 days of the order why the injunction
should not issue. Respondent has not done so, and the matter is
therefore ready for disposition.
DISPOSITION
[1] This court has the inherent power to define and regulate
the practice of law and is vested with exclusive power to determine the qualifications of persons who may be permitted to
practice law. As officers of the court, attorneys are
State, ex rel. Hunter, v. Kirk, 133 Neb. 625, 276 N.W. 380 (1937); In re
Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 275 N.W. 265
(1937); State, ex rel. Wright, v. Barlow, 131 Neb. 294, 268 N.W. 95
(1936).
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an important part of the judicial system of this state. It is
their duty honestly and ably to aid the courts in securing
an efficient administration of justice. The practice of law
is so intimately connected and bound up with the exercise of judicial power in the administration of justice that
the right to define and regulate its practice naturally and
logically belongs to the judicial department of our state
government.
Pursuant to this inherent power, this court has adopted rules
providing for an integrated bar and rules establishing the
standards and procedures by which attorneys may be admitted
to practice before the courts of this state. This court has also
adopted rules establishing standards for professional conduct
of attorneys and rules governing the disciplinary procedures
which may be invoked if an attorney violates those standards.
This court has also adopted rules requiring mandatory continuing legal education for attorneys who are active members of the
Nebraska State Bar Association.
[2,3] Our inherent power to define and regulate the practice of law includes the power to prevent persons who are not
attorneys admitted to practice in this state from engaging in the
practice of law. This inherent power is undiminished by the
fact that the Legislature has made the “[u]nauthorized practice
of law” as defined by Neb. Rev. Stat. § 7-101 (Reissue 2007)
a Class III misdemeanor. As we explained in State, ex rel.
Wright, v. Barlow:
In re Integration of Nebraska State Bar Ass’n, supra note 1, 133 Neb. at
289, 275 N.W. at 268.
Neb. Ct. R. §§ 3-801 to 3-814 (rev. 2008).
Neb. Ct. R. §§ 3-101 to 3-119.
Neb. Ct. R. of Prof. Cond. §§ 3-501.0 to 3-508.5 (rev. 2011).
Neb. Ct. R. §§ 3-301 to 3-328 (rev. 2011).
Neb. Ct. R. §§ 3-401.1. to 3-402.3 (rev. 2011).
See, Cornett v. State, 155 Neb. 766, 53 N.W.2d 747 (1952); State, ex
rel. Hunter, v. Kirk, supra note 1; State, ex rel. Wright, v. Barlow, supra
note 1.
State, ex rel. Wright, v. Barlow, supra note 1, 131 Neb. at 302, 268 N.W.
at 98-99.
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That an act denounced by statute as a crime may constitute a contempt of the court is beyond question, notwithstanding the offender may be prosecuted under a
criminal statute. . . . This court possesses inherent power
to protect itself and its officers from any unlawful interference with its functions as a court. This it may do, not
only for the purpose of protecting the court and its officers, but in the interest of the public at large to prevent
it from being exploited and injured by one unlawfully
assuming to act as an officer of the court. There are
many instances where persons’ rights have been jeopard
ized and sacrificed because of following the counsel and
advice of unlicensed persons, giving or attempting to give
legal advice.
With certain very limited exceptions, our rules prohibit lawyers
who are not admitted in Nebraska from practicing law here.10
A legal proceeding in which a party is represented by a person
not admitted to practice law is considered a nullity and is subject to dismissal.11 This is not for the benefit of lawyers admitted to practice in this state, but “‘for the protection of citizens
and litigants in the administration of justice, against the mistakes of the ignorant on the one hand, and the machinations of
unscrupulous persons on the other . . . .’”12
[4] Pursuant to its inherent authority to define and regulate
the practice of law in Nebraska, this court has adopted rules
specifically addressed to the unauthorized practice of law.13 In
the statement of intent which precedes the rules, we stated:
Nonlawyers may be untrained and inexperienced in
the law. They are not officers of the courts, are not
10
11
12
13
See § 3-505.5(b).
See, Anderzhon/Architects v. 57 Oxbow II Partnership, 250 Neb. 768, 553
N.W.2d 157 (1996); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28,
443 N.W.2d 604 (1989); Niklaus v. Abel Construction Co., 164 Neb. 842,
83 N.W.2d 904 (1957).
Niklaus v. Abel Construction Co., supra note 11, 164 Neb. at 852, 83
N.W.2d at 911, quoting Bennie v. Triangle Ranch Co., 73 Colo. 586, 216
P. 718 (1923).
Neb. Ct. R. §§ 3-1001 to 3-1021 (rev. 2008).
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a
ccountable for their actions, and are not prevented from
using the legal system for their own purposes to harm the
system and those who unknowingly rely on them.
. . . The purpose of the rules is to protect the public
from potential harm caused by the actions of nonlawyers
engaging in the unauthorized practice of law.14
At the core of our rules pertaining to the unauthorized
practice of law is a general prohibition: “No nonlawyer shall
engage in the practice of law in Nebraska or in any manner
represent that such nonlawyer is authorized or qualified to
practice law in Nebraska except as may be authorized by published opinion or court rule.”15 “‘Nonlawyer’” is defined by the
rules as “any person not duly licensed or otherwise authorized
to practice law in the State of Nebraska,” including “any entity
or organization not authorized to practice law by specific rule
of the Supreme Court whether or not it employs persons who
are licensed to practice law.”16 The term “‘practice of law’” is
defined as
the application of legal principles and judgment with
regard to the circumstances or objectives of another entity
or person which require the knowledge, judgment, and
skill of a person trained as a lawyer. This includes, but is
not limited to, the following:
(A) Giving advice or counsel to another entity or person as to the legal rights of that entity or person or the
legal rights of others for compensation, direct or indirect,
where a relationship of trust or reliance exists between
the party giving such advice or counsel and the party to
whom it is given.
(B) Selection, drafting, or completion, for another entity
or person, of legal documents which affect the legal rights
of the entity or person.17
14
15
16
17
Id.
§ 3-1003.
§ 3-1002(A).
§ 3-1001.
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state ex rel. comm. on unauth. prac. of law v. yah
Cite as 281 Neb. 383
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Certain types of conduct on the part of nonlawyers are not
prohibited by the rules, including “[n]onlawyers selling legal
forms in any format, so long as they do not advise or counsel another regarding the selection, use, or legal effect of
the forms.”18
The unauthorized practice rules include civil enforcement
procedures. The rules created the Commission, which consists
of six attorneys and three laypersons appointed by the court,
whose purpose is to receive and investigate complaints of
unauthorized practice of law.19 The Commission is authorized
by the rules to resolve a complaint under investigation through
a written consent agreement or consent decree.20 The rules further authorize the Commission to institute civil injunction proceedings before this court,21 as it has done in this case. When a
respondent named in a petition files an answer which presents
questions of fact, the rules provide that this court shall refer the
matter to a hearing master for resolution.22
As noted, the hearing master appointed in this case filed a
report which included findings of fact and a recommendation
that an injunction be issued. Section 3-1018(A) provides:
After de novo review of the proceedings before the Hearing
Master, and upon consideration of any exceptions and
briefs, the Supreme Court may adopt the report or modify
or reject it in whole or in part and shall determine as a
matter of law whether the respondent has been engaged
in the unauthorized practice of law. If the Supreme Court
finds that the respondent was engaged in the unauthorized
practice of law, the Supreme Court may enter an order
enjoining the respondent from further conduct found to
constitute the unauthorized practice of law and make such
further orders as it may deem appropriate, including restitution and the assessment of costs.
18
§ 3-1004(G).
§§ 3-1011 and 3-1012.
20
§ 3-1014(F).
21
§§ 3-1014(H) and 3-1015.
22
§ 3-1015(F).
19
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Based upon our de novo review of the record made before the
hearing master, to which no exceptions were taken, and our
consideration of all pleadings and reports filed herein, this
court adopts the hearing master’s report in its entirety. Based
on the report, we conclude that Respondent is a nonlawyer
who has repeatedly engaged in the practice of law as defined
by § 3-1001(A) and (B). We agree with the hearing master’s
recommendation that injunctive relief is appropriate and necessary given Respondent’s “intractable attitude” in response to
the Commission’s efforts to obtain his voluntary compliance
with our rules prohibiting the unauthorized practice of law. The
undisputed facts presented in this record clearly demonstrate a
very real risk of harm to the public if Respondent’s conduct is
not enjoined.
Accordingly, by separate order entered on April 22, 2011,
Respondent will be enjoined from engaging in the unautho
rized practice of law in any manner, including but not limited
to: rendering legal advice or counsel to others for compensation; selecting, drafting, or completing for another entity or
person legal documents or pleadings to be filed in the courts of
this state; and filing any pleadings on behalf of another entity
or person in any court of this state. Noncompliance with this
order of injunction shall constitute contempt punishable under
this court’s inherent power and § 3-1019.
Injunction issued.
Wright, J., not participating.
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